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Baroness Ashton of Upholland: My Lords, the noble Lord is extremely tenacious in the way in which he deals with issues. I can always rely on him to come up with another solution. Before I start on this, I want to say something further in the interests of telling the noble Lord as quickly as I possibly can about the issues that he raised in the last group, although I am sure that I am breaking all kinds of procedure. This is to do with those people that the Indian Government have now given a different status. On the record, I say that there will be no further charge and mere notification will be sufficient. I think that the noble Lord and Members of your Lordships' House would want to hear that immediately. I have just had that advice, and I am very grateful to my officials for doing that so speedily.
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Having made the noble Lord happy on one thing, I am now going to take away his happiness—I know that the noble Lord will not be surprised by that. I am grateful to him for talking this through with me on a number of occasions. I have heard a number of times as a Minister that, "it will affect only a small number of people". The noble Lord is of course correct on that. When you look across all of government policy, not least in this area which is quite complicated and important to try to get right, there are lots of potential issues where only a small number of people might be affected and where the noble Lord, in looking back on the amendments that we have already discussed and some that we may discuss on Third Reading, might say that only a small number of people are affected so therefore why on earth should the Government hold back on giving in.

The reasons are various. I think that the noble Lord had a hand in the decision to make the date 1961 in the first place. It is also important to recognise, as my noble friend Lord Filkin said, that we cannot undo everything that went before. As a woman, I can think of lots of legislation that I would like to go back over, going back several hundred years—and I suspect that the noble Baroness, Lady Anelay, could think of some too—that might still have some resonance for us today. There is a principle about people getting their citizenship as individuals and not because they happen to be related to someone else as adults. It is different with children; we have had a lot of discussions about children and the noble Lord knows that I am concerned that we keep that under review. As adults and real grown-ups—because they are pre-1961 so they are nearly as grown up as me—they are able to think about their entitlement as an individual and not just because they happen to have a connection with a sibling.

Although the noble Lord has tried to be very ingenious, as ever, in the way that he has approached this, I am going to resist it on the basis both that we cannot simply move policy around on the grounds that it affects only a few people, and that we have made a substantive approach to try to redress a problem, which was sexism and nothing else as far as I am concerned, in the right way. It is one that the noble Lord had a very strong hand in.

I cannot move any further when I fundamentally believe that, as grown-ups and adults, not merely as siblings, people should consider their own position in that context.

I know that that disappoints the noble Lord. He knows how much I try, particularly at this time of night, not to disappoint him, but I fear that I must do so on this occasion.

Lord Avebury: My Lords, I cannot help observing, as my noble friend Lord Dholakia just reminded me, that when it comes to disadvantaging a group of people, however small it may be, there is no problem with the Government finding room for them in the Bill.
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It is not a question of numbers; it is a question of fairness. The cut-off limit is not fair—it divides siblings in the same family, and it is unnecessary. I cannot see the logic of the Minister's statement that there are many other areas in statutes where relaxation of the time limit would have repercussions. So what? I cannot see the connection. However many times we argue about this on the Floor of the House, either with the noble Lord, Lord Filkin, or the noble Baroness, she, at least, has tried to explain the thinking behind this matter, with only partial success, because I still find it incomprehensible that she has not conceded on the amendment.

I shall have to go back to Mr Turberville and his campaign group and make them extremely disappointed; but I assure the noble Baroness that this will not be the last time we raise this matter. However old these people are, they still want to be in the same country as their siblings and it is wrong and unjust for Parliament to deprive them of that right. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

Lord Hylton moved Amendment No. 69:

Asylum applicants falling within the vulnerable categories, as defined by the United Nations High Commissioner for Refugees, shall only be detained before or during the determination of their cases if an independent medical practitioner has certified that detention will not harm their mental or physical health."

The noble Lord said: My Lords, I was mildly encouraged when I noticed that the Minister had two or three supporters behind her; but they have somehow melted away. She will now understand why I said to her in an earlier conversation that we would need two days for Report stage on this controversial, complex and difficult Bill.

This is a simple and, I hope, humanitarian amendment. The UNHCR has for a long time defined the kinds of asylum applicants that the commissioner considers to be vulnerable. These include the elderly, torture survivors, children, women who have suffered rape or who are pregnant, and people with serious health needs. Such conditions are made worse when those affected speak and understand little English. Bail for Immigration Detainees is a small English charity. In one year, it was approached by some 1,100 detainees, many of whom were in the conditions that I mentioned.

In May 2005, Médecins Sans Frontières reported on 13 adults and three children, all with health needs. Their detention lasted from 40 to 270 days, with an average of 250. The report commented on the apparent lack of means to secure appropriate medical care and protection. In February 2005, Save the Children estimated that 2,000 children are detained with their families each year. Studies of 32 cases showed that children can and do remain in detention for long periods.
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I hope that I have said enough to show that health and vulnerability are urgent problems that are often overlooked. My amendment offers a way of preventing harm and unnecessary suffering. There should be a thorough medical check before vulnerable people are locked up. If the Government believe that some vulnerable people will abscond if they are not detained, surely some combination of reporting and tagging could be devised to meet a few exceptional cases. As more people are expected to be detained each year from now on, health cases are likely to multiply, making my amendment still more necessary.

The amendment is intentionally limited to asylum applicants and, in particular, to those whose cases have not yet been determined. Perhaps it should go a little further—I do not know. As it originates from the direction of the UNHCR and as two of your Lordships with very considerable medical experience—the noble Lords, Lord Rea and Lord McColl of Dulwich, although they are not in the Chamber—have expressed to me support for it, I hope that it will commend itself to the Government. I beg to move.

10 pm

Baroness Anelay of St Johns: My Lords, I shall break my silence for the past half hour, although at this hour I shall be brief. I am grateful to the noble Lord, Lord Hylton, for tabling the amendment. He always challenges the House on humanitarian issues by bringing forward amendments that make us reconsider previous positions that we have taken on policy, which is very important. He is very—I am trying to find a polite word—clever at finding ways of doing it that are within the correct rules of the Bill. The amendment is certainly well founded.

To be picky, I find it difficult to know how the amendment might be properly applied. For example, if I were an independent medical practitioner and I were asked to certify that detention would not harm someone's mental or physical health, I would wonder for how long into the future I would have to provide that certification. Normally, a medical practitioner would certify the condition of a person only at that moment. We do not know how long a person may be held in detention. As the noble Lord has said on many occasions, detention should not take place anyway; if it does, it should be as brief as possible. I see that the noble Lord wishes to rise. This is Report, so I shall be brief. I know that he is trying to raise the threshold of how we approach people in the vulnerable group.

Vulnerable people who may be taken into detention—perhaps children or people who are vulnerable for other reasons—may be part of a family group. If one is a medical practitioner, one is then in the unenviable position of certifying the vulnerable person as someone who should not be subject to detention. What then happens to the remainder of the family group? Are they split up? I suspect that the noble Lord, Lord Hylton, would say that none of them should be in detention. These are very difficult questions that any government would have to address.
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It is important that amendments like this give us the opportunity to consider the arguments put forward by the Bail for Immigration Detainees organisation, which is excellent in its briefing. The amendment also gives us the chance to ask the Government tonight to explain what the current condition is and what systems are in place to provide the protections that the noble Lord, Lord Hylton, asks for. It would then be up to individual Members of the House to decide whether they think that the Government have shown there is sufficient protection to make it possible for us to reject the noble Lord's amendment or whether it needs to be considered further at Third Reading. I know that the noble Lord, Lord Hylton, is a master at refining amendments for Third Reading and I do not believe that the new rules on Third Reading will hold any fear for him at all.

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